Vagi and Minister for Immigration, Citizenship and Multicultural Affairs (Citizenship)

The Administrative Appeals Tribunal (the Tribunal) considered the application of Mr Vagi for Australian citizenship by descent. The Minister for Immigration, Citizenship and Multicultural Affairs had refused the application, and Mr Vagi sought review of this decision. The central dispute concerned the birthplace of Mr Vagi, which was critical to determining his eligibility for citizenship by descent.

The primary legal issue before the Tribunal was whether the evidence, on the balance of probabilities, established that Mr Vagi was born in Lae, in the Trust Territory of New Guinea, in 1958. This question involved assessing the authenticity and weight of various documents presented by Mr Vagi, including two PNG Certificates of Birth Entry, and considering the credibility of the evidence provided. The Tribunal also had to consider whether procedural fairness had been afforded to Mr Vagi in relation to adverse findings made by the original decision-maker.

The Tribunal found that the original decision-maker's conclusion that a specific birth certificate dated 6 November 2018 was fraudulently created was a significant factor that influenced subsequent findings regarding the genuineness of other documents. However, the Tribunal noted that there was no direct evidence of fraud concerning this document, and that a finding of fraud requires a high degree of certainty. Furthermore, the Tribunal observed that Mr Vagi had not been afforded an opportunity to respond to this adverse information before the decision was made, raising concerns about procedural fairness. The Tribunal also noted that its directions to the parties were limited to closing submissions, not the introduction of further evidence.

Consequently, the Tribunal set aside the decision under review. The matter was remitted to the Respondent with a direction that the Respondent is to be satisfied that Mr Vagi was born outside of Australia for the purposes of section 16(2) of the *Australian Citizenship Act 2007* (Cth). The Tribunal made no finding as to whether Mr Vagi had an Australian citizen parent at the time of his birth.